Gray Reed’s Post

The Supreme Court of Texas case of Occidental Permian v. Citation 2002 Investment offers insights into interpreting complex conveyance instruments with multiple granting clauses and other provisions. This high-stakes case highlights the importance of precise drafting and holistic interpretation when navigating conveyance intricacies. Learn more on the Energy & the Law blog.

The Supreme Court of Texas case of Occidental Permian v. Citation 2002 Investment offers insights into interpreting complex conveyance instruments with multiple granting clauses and other provisions. This high-stakes case highlights the importance of precise drafting and holistic interpretation when navigating conveyance intricacies. Learn more on the Energy & the Law blog.

The Supreme Court of Texas case of Occidental Permian v. Citation 2002 Investment offers insights into interpreting complex conveyance instruments with multiple granting clauses and other provisions. This high-stakes case highlights the importance of precise drafting and holistic interpretation when navigating conveyance intricacies. Learn more on the Energy & the Law blog.

The Supreme Court of Texas case of Occidental Permian v. Citation 2002 Investment offers insights into interpreting complex conveyance instruments with multiple granting clauses and other provisions. This high-stakes case highlights the importance of precise drafting and holistic interpretation when navigating conveyance intricacies. Learn more on the Energy & the Law blog.

The Supreme Court of Texas case of Occidental Permian v. Citation 2002 Investment offers insights into interpreting complex conveyance instruments with multiple granting clauses and other provisions. This high-stakes case highlights the importance of precise drafting and holistic interpretation when navigating conveyance intricacies. Learn more on the Energy & the Law blog.

The Supreme Court of Texas case of Occidental Permian v. Citation 2002 Investment offers insights into interpreting complex conveyance instruments with multiple granting clauses and other provisions. This high-stakes case highlights the importance of precise drafting and holistic interpretation when navigating conveyance intricacies. Learn more on the Energy & the Law blog.

Looking forward to being a part of this panel! Join me and IEL for the 14th Annual Energy Law Conference—links are in the below post.

Below is an article that my colleague Sean Sutherland and I recently authored together with Martha Peden and Kevin Thrasher regarding cumulative effects litigation and how governments and industry should navigate this evolving landscape. Thanks to Lisa Manners and Joey Chan for their support in writing this paper!

🌏 On 27 July 2023, the First Civil Panel of the Federal Court of Justice (BGH, Bundesgerichtshof) ruled in three cases that EU Member States (MSs) are allowed to use upstream national judicial protection against arbitral proceedings initiated by investors from other MSs on the basis of the Energy Charter Treaty (ECT) at the ICSID under the ICSID Convention of 18 March 1965 (see comment below for the summary in English). ➢ In case I ZB 43/22, the applicant is an EU MS (Germany) that has amended its legislation in the field of wind and solar energy. As a result, the respondents, who belong to a group of companies in another MS, see this as damaging their relevant investments in the EU MS to the amount of a three-digit million figure. They therefore initiated investor-state dispute settlement (ISDS) proceedings with the ICSID on the basis of the arbitration clause contained in Article 26 of the ECT. ➢ In the parallel cases I ZB 74/22 (Uniper) and I ZB 75/22 (RWE), the applicant in both proceedings is the same EU MS (The Netherlands). It decided to phase out electricity generation from coal by 2030. As a result, the respondent in proceedings I ZB 74/22 and the respondent in proceedings I ZB 75/22, which have their seat in another MS, both saw damage to their investments in a coal-fired power station located in the EU MS amounting to a three-digit million figure (in case I ZB 74/22) and a one-digit billion figure (in case I ZB 75/22). Each of them therefore initiated ISDS proceedings with the ICSID on the basis of the arbitration clause contained in Article 26 of the ECT. 📣The BGH decided under the Code of Civil Procedure (Zivilprozessordnung) that the respective ISDS proceedings "are inadmissible due to the lack of an effective arbitration agreement. According to the case law of the CJEU, the arbitration clause contained in Article 26 (2) (c), (3) and (4) of the ECT violates EU law for intra-EU ISDS, precluding the conclusion of an effective arbitration agreement. Due to its incompatibility in particular with Articles 267 and 344 TFEU, there is a lack of effective consent, and thus of an offer by the applicant EU MS to conclude an arbitration agreement." In that regard, the BGH made references in particular to the CJEU judgments in Achmea (C-284/16), Komstroy (C-741/19), Romatsa (C-333/19), and PL Holdings (C-109/20) cases attributing them the full retroactive legal effect relative to the mentioned ISDS proceedings. ❗️❓ As earlier reported by Alexander M. Wagner, it is doubtful that courts outside the EU would give deference to a German declaration of inadmissibility, "particularly if the respective state is bound by the ICSID convention (like Australia). Any deference by arbitral tribunals would come as a surprise, too." But "intra-EU investors are well-advised not to bother attempting to enforce their ICSID awards in Germany." (see comment below for the link to his publication). Does the decision by BGH makes sense under international law?

Legal Briefcase | Issue No. 325 | 13 June 2024 News from across the rest of Africa: TEMPLARS Transcripts: Energy and Natural Resources | June 2024 https://bit.ly/3RmV3lt Templars Law #energy #naturalresources